EVERYDAY LAW: Examining domestic act
The Domestic Violence (Protection Orders) Act 1992 came with force in February 1992. As would be expected, experience would have revealed some deficiencies in the legislation.
It is based on these deficiencies as well as the current thinking about such legislation that amendments to the legislation are being proposed.
Before I look at some of the amendments that are likely to be considered, I should point out that the legislation has to some extent proved successful in combating the problem of domestic violence, especially physical violence.
The legislation, as it stands, offers a speedy remedy for domestic violence in the circumstances to which it applies.
Generally, the courts have been very strict in enforcing the legislation and this has had the effect, in a significant number of cases, of reducing the amount of domestic violence.
Two of the deficiencies that have been identified relate to the absence of a definition of domestic violence and the scope of the court’s power to make protection orders. It is felt that the legislation should contain a clear and expansive definition of domestic violence.
A few years ago a draft Domestic Violence Bill was prepared for the Organisation of Eastern Caribbean States (OECS). It proposed a definition of domestic violence in the following terms:
“Domestic violence means any controlling or abusive behaviour that harms the health, safety or well-being of the applicant or any child in the care of the applicant and includes but is not limited to the following:
(a) physical abuse or threats of physical abuse,
(b) sexual abuse or threats of sexual abuse,
(c) emotional, verbal or psychological abuse,
(d) economic abuse,
(h) damage to or destruction of property, or
(i) entry into the applicant’s residence without consent, where the parties do not share the same residence.”
An amendment along those lines is recommended for Barbados. The amendment would also contain definitions of terms such as economic abuse, emotional abuse and intimidation.
Another matter that has been considered is the broadening of the scope of the court’s power to issue protection orders. As part of this process, the High Court will also be empowered to hear matters under the act and to make protection orders.
Clause 7 of the draft OECS legislation proposes the following:
“7. (1) A protection order issued by the court pursuant to this act may prohibit the respondent from:
(a) committing any act of domestic violence,
(b) enlisting the help of any person to commit any such act of domestic violence,
(c) entering the shared household, save and except that the court shall only impose this prohibition only if it appears to be in the interests of the applicant or any child or dependent,
(d) entering a specified part of the shared household,
(e) entering the residence of the applicant,
(f) entering the place of employment of the applicant,
(g) preventing the applicant or any child or dependent who normally resides or has resided in the shared household from entering or remaining in the shared household or a specified part of the shared household,
(h) taking possession of, damaging, converting or otherwise dealing with property that the applicant may have an interest in, or is reasonably used by the applicant, as the case may be,
(i) approaching the applicant within a specified distance, or
(j) committing any other act as specified in the order.
In Barbados, increased powers are being recommended for the court hearing matters relating to domestic violence. These powers would include a power to order that interim financial payments be made to a complainant or child or dependent of a complainant even in cases where there are no existing maintenance orders in place.
• Cecil McCarthy is a Queen’s Counsel.